When Do Judges Get to Use Judgement in Interpreting a Statute?

Via How Appealing comes an interesting statutory interpretation issue: in reading a statute, what does a court do with outcomes that are required by the plain language of the statute, but that Congress may not have intended? According to Judge Boudin on behalf of a unanimous First Circuit panel ten years ago, the answer is that the court should intervene when it “is patent that Congress as a whole did not appreciate the great variety and complexity of state provisions that would have to be meshed with the new federal statute or the odd results that would follow.” But according to a decision written by Judge Easterbrook and issued yesterday by a unanimous Seventh Circuit panel, the answer is that the court should intervene only when the “statute is … absurd as written;” that is, if its text does not “parse[ ]” or there is “linguistic garble.” “The canon [of absurdity] is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce.”

The statute at issue in both cases is the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

The statute provides an enhanced penalty of at least fifteen years’ imprisonment for illegal possession of a firearm by a felon if the felon had at least three prior “serious drug” or “violent felony” convictions. “Violent felony” is defined as any violent crime “punishable by imprisonment for a term exceeding one year.” That last phrase, however, is in turn limited by the definition provided in Section 921(20), which states: “Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

The question, therefore, is whether a conviction that never removed civil rights to begin with, or impeded the ability to “ship, transport, possess, or receive firearms,” should count as a conviction for purposes of Section 924(e)(1). In United States v. Logan, the Seventh Circuit said “yes.” Logan, the defendant, had “three battery convictions that, though called misdemeanors in Wisconsin, carried maximum terms of three years’ imprisonment,” though they did not remove his right to vote, hold public office, or sit on juries, and there was no restriction imposed on his ability to possess firearms. Nevertheless, the Seventh Circuit held that they qualified as “violent felonies” under the plain language of Section 924(e)(1) and were not excluded by Section 921(20), because “[t]he word ‘restore’ means to give back something that had been taken away,” and as the Second Circuit held in a similar case, “the ‘restoration’ of a thing never lost or diminished is a definitional impossibility.”

The First Circuit, in United States v. Indelicato (Lexis sub. req.), 97 F.3d 627 (1st Cir. 1996), went the other way. The court first noted the legislative history behind the weird exception in Section 921(20):

As originally enacted in 1968, 18 U.S.C. § 922(g)(1) made criminal gun possession by anyone previously convicted of a crime (the predicate offense) punishable by more than one year of imprisonment, but the statute allowed an exception for state misdemeanors punishable by two years or less of imprisonment. 18 U.S.C. § 921(a)(20). In 1983, the Supreme Court held that a predicate offense under section 922(g) is defined by federal law, and that state expunctions of state convictions did not avoid the ban of section 922(g)(1). Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 115, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983).

Congress reacted to Dickerson and like rulings by enacting in 1986 the Firearms Owners’ Protection Act, 100 Stat. 449, which in pertinent part amended section 921(a)(20)’s definition of predicate offenses. The amendment, which remains in effect today, provides that state law defines what constitutes a predicate “conviction” for purposes of section 922(g)(1) and other provisions of the statute. It also excludes convictions that have been “expunged” or “set aside,” or for which the person has been “pardoned” or “has had civil rights restored.” Congress has provided no definition of “civil rights” or “restored.”

The main issue for us is whether the “civil rights restored” provision in section 921(a)(20) protects one who, like Indelicato, never had his civil rights taken away at all.

Judge Easterbrook’s discussion of why the Seventh Circuit declines to follow the Indelicato decision is practically mocking in tone. As he describes it, the First Circuit declined to apply Section 924(e) for two reasons: “(a) it thought the statute silly—for why should someone whose civil rights were never taken away receive a higher federal sentence than a person who lost and then regained those rights?—and (b) no legislative history shows that Congress meant to distinguish between convicts who never lost civil rights and those who lost but regained them.” He dismisses the second point as “a makeweight,” because “[s]tatutes do not depend, for their force, on some statement in the legislative history along the lines of: ‘We really mean it!'” As for the first point:

The Supreme Court insists that statutes be enforced as written even when they seem mistaken or pointless—for it is exactly then that the temptation to substitute one’s judgment for the legislature’s is strongest. [cites] Laws are not “harsh” or “pointless” in any value-free framework; they seem harsh or pointless by reference to a given judge’s beliefs about how things ought to work, which is why a claim of power to revise “harsh” or “pointless” laws elevates the judicial over the legislative branch and must be resisted. See Tyler v. Cain, 533 U.S. 656, 663 n.5 (2001). . . .

Indelicato assumed that judges may correct a legislature’s mistakes and oversights. It did not, however, identify any source of authority to do this . . . . When the first circuit in Indelicato combined what it perceived as an infelicitous enactment with the absence of “We really mean it!” legislative history, it was nodding in the direction of imaginative reconstruction—the idea that a court may implement what it is sure the legislature would have done (had it faced the question explicitly) rather than what the legislature actually did. The Supreme Court has anathematized that approach as democratically illegitimate, for it sets up the judiciary as the effective lawmakers. See, e.g., West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100-01 (1991) (calling imaginative reconstruction a “usurpation” that “profoundly mistakes [the judicial] role”); Tafflin v. Levitt, 493 U.S. 455, 461-62 (1990) (“Petitioners . . . insist that if Congress had considered the issue, it would have [adopted a particular rule]. This argument . . . is misplaced, for even if we could reliably discern what Congress’ intent might have been had it considered the question, we are not at liberty to so speculate”).

I find Judge Easterbrook’s dismissive attitude toward the issue here troubling for three reasons. (I don’t know that I ultimately agree with the First Circuit; I just think it’s a hard question.) First, I would have much less discomfort that injustices caused by unforeseen applications could be corrected if Congress easily and frequently revisited statutes. But that does not appear to be the case, and particularly in areas such as criminal law, there are political incentives against making any criminal statute *less* strict, even if it is error-correction. In addition, the rate of such errors may be very infrequent, making it harder to grab legislators’ attention. Second, obviously error-correction by the legislature does nothing for the individual party before the court. Again, this is bad enough in civil litigation, but in the cases here the practical impact is an increase in the minimum prison sentence of at least 5 years.

Third, I just don’t buy the idea that judges are supposed to approach statutory (and constitutional) interpretation devoid of any framework of what is “harsh” and “pointless” and therefore gives rise to a question of whether that is the correct interpretation. Interpretation commonly proceeds in such a fashion. For example, say a law school adopts a rule: “No laptops in the classroom.” Some students are caught studying in a classroom when no class is going on, and they are using their laptops. Have they violated the rule? Probably not; it would seem “harsh” and “pointless” to punish students for using laptops in an empty classroom. The rule makes the most sense in the context of the debate that probably gave rise to it, namely whether laptops *during class* are too distracting and disruptive. Similarly, the First Circuit looked to the debate that gave rise to the “restored rights” exception in Section 921(20), and found it unlikely that such an arbitrary distinction between restored rights and rights that were never taken away was really intended.

As it turns out, and Easterbrook treats this like a mere footnote, 16 days before the Indelicato decision was issued Congress added Section 921(33) to the Act, making it clear that a restoration of rights, and not a misdemeanor that never stripped rights, was to be excluded from the definition of a “crime of domestic violence” for purposes of a similar sentencing enhancement. There may still be an argument that, in the process, it didn’t fix Section 921(20), and may have intended something by the difference; but it at least appears that Congress did not view additional punishment based on crimes that never divested a misdemeanant of civil rights to be “harsh” or “pointless.” But I don’t see how this factual development helps the judge ex ante faced with this sort of dilemma.

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22 Responses

  1. MJ says:


    Assuming such a silly matter ever made it into a court of law, your “No laptops in the classroom” example is quite perfect to demonstrate that judges cannot lawfully write additional requirements into statutes (using this as a hypothetical statute).

    That statute has two elements: “possessing a lap-top” and doing it “within a classroom”. There is no question that the students in you hypo meet both elements. Nothing is ambiguous in those terms. Reading a third element: “during class” -into the statute is no more than reading in a personal preference because you don’t like result that the statute dictates. A judge has no authority to make an act prohibited by lawful statute, lawful, by reading non-existing requirements into the statute because he or she thinks the result is absurd:

    “To invoke too readily the “absurd result” doctrine, or related notions which are said to justify the disregard of statutory language, creates too great a risk that the Court is exercising its own “WILL instead of JUDGMENT,” with the consequence of “substituting [its own] pleasure to that of the legislative body.” The Federalist No. 78, p. 469 (C. Rossiter ed. 1961) (A. Hamilton).”

    The administrator or teacher who wants to enforce the above-mentioned statute on those facts is a tool. But a judge who disregards the plain text of a statute because he doesn’t like it is every bit as imperial as an the executive who does the same thing, and disrespects the law he is supposed to uphold.

  2. Simon says:

    what does a court do with outcomes that are required by the plain language of the statute, but that Congress may not have intended?

    In my view, the court should follow the outcome required by the plain language of the statute, regardless of what Congress may or may not have intended to do (assuming that “Congress” actually had a singular, particular and discoverable intent, all of which I would dispute except in haltingly rare exceptions), and even if the result mandated is “absurd” in the common meaning of that term. I would thus agree with the Seventh Circuit’s result in Logan. §921(20) exempts certain convictions from consideration under §924(e)(1), and the conviction at issue here fits into none of those exemptions. Ergo, it is a conviction for purposes of §924(e)(1), and I think Easterbrook is entirely correct.

    Latitudinarian interpretations by courts determined to force “justice” through the cracks in the statute actively discourages Congressional revisitation of clearly-flawed statutes; as Grant put it, “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.” Moreover, in my view, it is an inappropriate exercise for a Federal Judge to try and find a way around Federal law rather than applying it as it is written and (within reason) how it has previously been construed; although there may be some cost to individuals from such an approach, nor is it without consequence for society to free courts from their role of applying the law, rather than making it.

    And lastly, as to the “no laptops” rule, I fail to see what the problem is. Regardless of the legislative history of the rule, or the faculty’s intent in adopting it, the rule says “no laptops in the classroom.” It does not say “no laptops in class,” or “students may not use laptops during lectures,” it says “no laptops.” Of course, in this example, the judicial and legislative roles are combined, since it is the faculty that both made and will interpret the rule, and so they are free to discard it. Likewise, courts may disregard doctrine they have made, but only the legislature can disregard laws it has made.

  3. Larry D'Anna says:


    What if a typo changes the meaning of a law?

    Should judges apply the erroneous version?

  4. Chris Bell says:


    And what would you do if the “no laptops” rule was created at a faculty meeting for which we have the transcript?

    At the meeting, all of the professors complained about how distracted their students were. No faculty statements can even begin to imply that laptops shouldn’t be allowed when class is going on. Should the judge still do something that is reasonably viewed as harsh?

    Why should this kid, who didn’t do anything really that bad, be punished because professors are idiots? Why is discarding common sense a good thing? Especially in a criminal context, wouldn’t it be better for the faculty to tighten the rules later (if that is what they really wanted) rather than try to undo this punishment?

    As another hypo, what if one professor said, “We should write an exception and list of the times when class is not going on,” and another professor said, “Don’t be silly! No one would ever interpret this to mean that laptops aren’t allowed when class isn’t going on.”

  5. Simon says:

    If the scrivener’s error doctrine reaches anything, it reaches plain typographical error. But in my view, a judge cannot “stretch that doctrine so as to give the problematic text a meaning it cannot possibly bear,” U.S. v. X-Citement Video, 513 U.S. at 82 (Scalia, dissenting). There may be some disagreement as to whether a court can “give an unusual (though not unheard-of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result,” ibid., but certainly what it cannot and should not do is read new words into a statute when those which are actually there produce a result that the judge does not like or thinks is unjust.

  6. Simon says:

    And what would you do if the “no laptops” rule was created at a faculty meeting for which we have the transcript?

    We should not look at the transcript. Even assuming that a faculty meeting is comparable to a legislative process involving 536 individuals divided between three entirely separate institutions (each of which may have entirely different intentions or understandings of what a statute should do or does, and indeed, some of which may have no particular understanding or intention beyond “the whip’s office said ‘be here at 9am and say “aye”‘, so here I am”), the principle still holds. The rule is what the rule says.

  7. MJ,

    Consider the strict liability sexual assault statute in State v. Yanez, 716 A.2d 759 (R.I. 1998). The statute provided: “[a] person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under.”

    The term “sexual penetration” was defined as:

    “‘Sexual penetration’ sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person’s body or by any object into the genital or anal openings of another person’s body, but emission of semen is not required.”

    Take a look at the statute’s definition of “sexual penetration.” Would the insertion of a rectal thermometer into a baby’s behind by a parent violate the statute?

    How would a plain meaning approach deal with this? Suppose a prosecutor brought such a case. Would a judge who threw out the case on so-called “absurdity” grounds or on the basis that such a prosecution does not square with legislative intent be one who “disregards the plain text of a statute because he doesn’t like it”?

  8. MJ says:


    Because we are treating the “no laptops” rule as if it were a statute, the answer is that no, you don’t look behind a clearly worded statute. It’s an invitation to mischief to chunk the language of a statute in search of what is just – which is exactly what you have called for. If the faculty -the putative legislature in our hypo – wanted to prohibit using a laptop “during class only,” they knew how to say that and should have said so. But once asked to enforce the statute, judges do not have they authority to enforce only the laws that they agree with or find just.

    As to your “common sense” argument the problem with “common sense” is that you can’t get two people to agree on what it means in a given set of facts: that’s why it’s so necessary to interpret laws according to what they say rather than what a judge thinks they mean. Otherwise, you open-up the door to usurpation of the legislature – the law makers we elect to represent us.

  9. PK says:

    RE: the classroom hypo – Even an ardent textualist judge would say that plain meaning must be assessed in context. In the context of the statute, a “classroom” is a room in which a class is meeting, not a room in which a class has met at another time. Therefore, when class is not in session, the room in question is just a room, not a “classroom.”

    In short, there’s ambiguity in the term “classroom.”

  10. Chris Bell says:

    MJ and Simon,

    Pretend instead that you are leaving instructions for your child’s babysitter as you go to work each day. I would personally want a babysitter who did his or her best to follow my instructions along with common sense

    It’s true that commons sense to one person might not be common sense to another, but I’d rather take my chances that way.

    If I write an instruction to “put the baby in the trash and throw it away,” I probably meant to say the baby’s diaper. I know you’ll say, but that’s absurd! But is it absurd to everyone? Maybe I want to kill the baby because it cries all the time. I’m sure we could come up with other examples of things that no parent would want, even though they might not meet the high bar of absurdity.

    Trying to do exactly what the master wanted even though it might not be exactly what the master said is better. If purpose and language seem at odds, I think the judge will get the true purpose (objectively) right more often by using every source available, including legislative history and common sense.

  11. MJ says:


    Yes, your hypo violates the statute. You seem to argue that because a court wouldn’t dismiss the hypothetical parent/baby/thermometer as a matter of law, a terrible injustice is done. 1) There is absolutely zero chance that a prosecutor would bring that charge on your given facts 2) Zero chance a jury would convict on your facts and 3) Every chance that the legislature would amend the statute the very second it was being used to prosecute a parent for tending to their child. 4) Every chance there would be a political firestorm if such a thing were to happen.

    Judges aren’t the sole dispensers of justice in this country.

  12. Anderson says:

    Looking forward to MJ’s answer on the rectal-thermometer issue. I’m afraid to see what the Mississippi law is–I may already be a child molester.

  13. Anderson says:

    (Cross-posted. Darn!)

    Fascinating that prosecutors and juries have discretion to disregard or reinterpret the law, but judges don’t. I’m glad we bestow this awful power only upon the most responsible members of our society.

  14. TO says:

    To raise an obvious point, enforcement of law school rules doesn’t implicate separation of powers or governance structure concerns.

    It’s quite a different situation for an article III court to second-guess Congress than it is for a school administrator to second-guess whoever makes these rules in the first place. Had the “no laptops in classrooms” statute been a criminal statute enacted by the California legislature, and a California prosecutor decided to enforce it against some poor Boalt student, then the student should hang for it. The result is due to a failure of either draftsmanship or prosecutorial discretion, and not a situation in which a court should step in and “interpret” the statute.

  15. Anderson says:

    The result is due to a failure of either draftsmanship or prosecutorial discretion, and not a situation in which a court should step in and “interpret” the statute.

    Same question: why is there “prosecutorial discretion” but not “judicial discretion”?

  16. BK says:

    (1) re the “rectal thermometer” hypo– the “absurdity” doctrine has nothing to do with it. Criminal laws are interpreted to exclude liability for acts reasonably related to medical care, which is also why a doctor who gives an injection to an unconscious child is not guilty of assault & battery. You simply don’t get to the absurdity question; that “case” is a goner right out of the gate.

    (2) Easterbrook was being dismissive, and his snooty attitude is one of his biggest problems. His personality unfortunately comes through. This is not as easy as he makes it sounds, and by being so flippant and sarcastic he undermines his own position. I don’t think that his statement, “The Supreme Court insists that statutes be enforced as written even when they seem mistaken or pointless” is as unambiguously supported in his citations as he makes it sound, nor do I think that the proposition for which he tells us “see Tyler v. Cain” is well-supported there– though to his credit he did preface the cite with “see.”

    Easterbrook is imaginative and thoughtful but is often (and here) speaking a little too broadly.

    (3) nonetheless I agree that the 7th Circuit is right in this case. The results are harsh and incongruous for similar conduct but that is not “absurd” by itself. It’s a good argument for amending the statute (even to the point of providing retroactive relief) but not a justification for judges deciding “we’ll just take care of this, we think Congress would have done this if they had thought about it and it’s a better result.” I do think he’s right that the claim that “no legislative history shows they deliberately left these people out” is pathetically weak.

    (4) as for Mr. Boyden’s statement that “areas such as criminal law, there are political incentives against making any criminal statute *less* strict, even if it is error-correction,” how is that an argument for anything other than Platonic Guardians to serve as a super-legislature? If indeed there are “political incentives” not to amend this statute, that just means that the elected representatives of the people don’t want to change it. So what are we going to do, have judges amend statutes until they fit the judge’s definition of fairness? That is legislation, not interpretation.

    (5) Maybe Congress didn’t think about this. Probably most people in Congress didn’t think about this at all, or even read all of it before voting. But maybe someone DID think about it, and figured that a person with a felony conviction who did not lose civil rights had gotten a pretty good bargain out of that felony, and shouldn’t get an easy go next time; as opposed to someone who had gone to the trouble of having to apply for and receive a restoration of civil rights, and who may depending on the law involved have had to make some showing post-conviction that they had successfully completed probation or their sentence.

    We don’t know for sure what “Congress thought.” We are all really clear on what Congress SAID though, and we ought to stick with that.

  17. ohwilleke says:

    Easterbrooke’s real mistake is to assume that if a judge references a value system that he necessarily is referencing his own value system. There are legitimate third party value systems supported by jurisprudence. One is the value system inherent in the legislative intent, and another is the value system inherent in the constitution.

    Laws are never enacted for value neutral reasons. They are enacted in a context. The 8th Amendment not only permits judges to consider if a statute is harsh, it requires such an analysis, and requires judges to devote a framework for making such an interpretation.

    Judges are not interpreting a divine writ. Laws are written by human legislators and should be given their intended effect.

    The fact that the U.S. Supreme Court has on two cited occassions in the last couple of decades, screwed this up, does not mean that this was their general standard of jurisprudence. The U.S. Supreme Court, contrary to Easterbrooke’s suggestion, does not have a consensus view of the general subject matter of statutory interpretation, and cherry picking extreme opinions doesn’t prove the point.

  18. Guest says:

    That opinion really irked me. What was funny about it, though, was Easterbrook imposing his opinion that other judges shouldn’t impose their opinions. Mote, meet beam. 🙂

  19. Bruce Boyden says:

    Some of the commenters above may be particularly interested in this article from the New York Times this morning presenting a clear case of a statute being applied in a way that the legislature hadn’t considered. (It’s an anti-terrorist measure being applied against a gang member.) Here’s the comments of the sponsor of the bill:

    State Senator Michael A. L. Balboni, the Long Island Republican who sponsored the legislation, said he had envisioned “mass effect” cases of terrorism like the World Trade Center attack and the Oklahoma City bombing in 1995 when he submitted the bill.

    [Bronx D.A. Robert] Johnson’s use of the legislation, he said, is an “unanticipated application.” Mr. Balboni declined to say whether he supported the use of the law in Mr. Johnson’s prosecution.

    “His is a literal interpretation of the statute,” said Mr. Balboni. “We’ll write the laws, and it’s up to the prosecutor to apply the law and for a jury to decide.”

  20. Anderson says:

    (1) re the “rectal thermometer” hypo– the “absurdity” doctrine has nothing to do with it. Criminal laws are interpreted to exclude liability for acts reasonably related to medical care ….

    Okay, and what statute is this interpretive rule codified in?

    Or could that possibly be a judge-made rule of discretion?

  21. yclipse says:

    For an extreme application of judicial discretion, in which the courts decided that Congress made an error in drafting the statute and helpfully “interpret” it precisely the opposite way, see Howard Bashman’s recent column Less Is More: When Courts Decide a Law Means the Opposite of What It Says.

    I like Chris Bell’s comment. We do expect judges to apply intelligence and common sense to their role.

    But sometimes bailing the legislature out is the wrong approach. Softening or negating the effect of errors often means that there will never be any pressure to correct them. Legislators won’t mind being sloppy in drafting laws. They will figure that all they need to do is get close to the mark and the courts will decide how to hit the bull’s eye.

  22. yclipse says:

    And I just encountered this in a story about a Briton’s frustrations in travelling across the U.S.:

      But it’s the idiocracy that really gets me down. The constant coaxing you have to do to get anything done. “No” is the default setting whether you want to change lanes on a motorway or get a drink on a Sunday. It’s like trying to negotiate with a donkey. Once, I urged a cop in Pensacola, Florida, to use his common sense and let me load a van in the no loading zone, since the airport was shut and it would make no difference. “Sir,” he said, “you don’t need common sense when you’ve got laws.”

      [Source: London Times Online]

    Of course, here he is talking about a law enforcement officer, not a judge. But it’s a great quote.